(NA) D v (T) D

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1985
• Neutral Citation: 1985 WJSC-HC 1918
• Docket Number: no 452 sp/1982
• Court: High Court
• Date: 01 January 1985

D (N A) v. D (T)

N.A.D.

Plaintiff

.v.

T.D.

Defendant

1985 WJSC-HC 1918

no 452 sp/1982

THE HIGH COURT

Synopsis:

HUSBAND AND WIFE

Separation

Children - Access - Desertion by wife - Youngest child aged 14 years - Son of wife extra-marital liason - Whether any benefit to children in granting wife rights of access - (1982 No. 452 Sp. - Barron J. - 10/5/84).

|D. v. D.|

TRUSTS

Creation

Property - Husband and wife - Improvement of land acquired by husband - Wife's contribution to expenses of improvement - Whether constructive or resulting trust created - Distinction - No agreement or representation that wife entitled to interest in property - Wife without such interest - (1982 No. 452 Sp. - Barron J. - 10/5/84).

|D. v. D.|

Citations:

C V C 1976 IR 254, 111 ILTR 133

HEAVEY V HEAVEY 111 ILTR 1

MCFARLANE V McFARLANE 1972 NI 59

SNELL PRINCIPLES OF EQUITY 18ED P1920

W V W 1981 ILRM 202

1 Judgment of Mr. Justice Barron delivered the 10th day of may 1984

2 The parties in this case were married in the Roman Catholic Church of Saint Patrick in Galway on the 16th July, 1962. They have five children of whom the eldest was born on the 17th November, 1963 and the youngest on the 28th July, 1969. These children are now aged 20, 19, 18, 17 and 14 respectively. The husband vas a small farmer and the wife was a shopkeeper having inherited from her mother a couple of months before the marriage a restaurant and take-away business in the centre of town which dealt mainly in confectionery, minerals and chips but also some groceries.

3 Following their marriage, the husband left his farm where he had been living with Ms aunt and went to reside with his wife and her father in living- accommodation above the shop. His aunt continued to reside on his farm and vas maintained by him. He remained living over his wife's shop until the Spring of 1964 when he moved back to his own farm. During the period while he was away from hi3 farm in this way he looked after it during the day time but spent most of his time assisting his wife in the business and effecting improvements to the business premises.

4 When the husband left his wife's home he did so with the intention of building a house for the family on a site which he had purchased in February 1964. He commenced work on this new hone in or about the month of April, 1964 and continued with it until the house was finally completed some time in the Spring of 1965. It was sufficiently habitable by November 1964 at which time he and his wife and children moved into it on a permanent basis. Following her move to the new family home, the wife continued to run her business but this proved difficult to accomplish and she sold it early in the year 1965. Her father who had remained living over the shop then came to live with his daughter and her husband and their children in their new home.

5 Once the home was finished the husband obtained employment. In the Summer of 1965 he obtained ten weeks employment as a builders' labourer. After that he obtained employment as a milk roundsman in the morning and as a rental collector for a television hire company in the evening. At the same time as holding these two jobs he also worked on his own farm during the afternoon. He and his wife were of very different character and these differences caused considerable disharmony in their marriage. By the Summer of 1966 these differences had reached the stare where he left home and worked in England for six months. During this period his aunt who was living his farm died and he returned for the funeral. After his ultimate return from England he sold his farm early in 1967 to his brother.

6 In February 1967 the husband obtained employment with Roadstone Limited by whom he has been employed since and by whom he is now employed as a contract foreman. Relations between himself and his wife were totally restored during the first half of 1967, but began to deteriorate again after that period. In October 1971 the wife left the family home without any warning and after a few weeks in the neighbourhood of the family home during which neither party communicated with the other the wife went to England. In England she formed an association with another man with whom she lived until 1976 and by whom she bore a son on the 21st October, 1974. She ended this association in the year 1976 when she walked out without any warning taking her son with her.

7 While in England the wife obtained good employment in the catering industry. Since the break-up of her association in England, she appears to have had no employment and has lived mainly in this country but at all times with the assistance of social welfare payments.

8 After the wife left home, her father remained and assisted his son-in-law in bringing up the children until his death in 1975. Sometime in the year 1975 or 1976 the wife commenced divorce proceedings in England but apparently discontinued them. The husband then commenced similar proceedings in the sane jurisdiction as a result of which a decree absolute was granted on the 20th July, 1976. Subsequently the husband obtained a Church annulment of his marriage on the 31st January, 1980. In the month of July 1980 he married in Church a woman in the same position as himself who had six children all in or about the sane age as his own. He built a second house beside the family home and the two adults and eleven children now share the accommodation of the two houses.

9 Since the wife ended her association with the man with whom she had been living in England she has in addition to the present proceedings instituted proceedings in the District Court on two occasions both tines for maintenance. In November 1977 her claim was dismissed for want of jurisdiction; in March 1981 her claim was struck out because she did not appear owing to illness. These proceedings appear to have been brought as a requirement for the wife's claim to deserted wifeÆs allowance, though in fact she was regarded as being ineligible for such payments. No legal submission has been made that the wife is in anyway prevented from pursuing her present slain, by reason of any of the proceedings to which I have referred.

10 The present proceedings were issued on the 11th May, 1982. They raise a number of issues of fact and law. The claim can be divided into three parts. The wife seeks access to her children; she seeks maintenance from her husband; and she seeks a declaration as to the ownership of the family home and its furniture, and, if appropriate, an order for the sale of such home to realise the value of her interest therein.

11 The evidence adduced indicates that the parties did not have a satisfactory marriage. Each has made allegations against the other that the other was responsible for its break-up. The husband claims that the wife was a bad manager, that she was irresponsible with money, that she stayed out late drinking and did not look after her children properly. The wife accuses the husband of giving her insufficient monies and also violence towards her. There is some independent evidence which bears on these several complaints. One of the matters in dispute is whether the husband, when he was working in England during the latter half of 1966, sent home money to his wife from the first week that he was away and then regularly thereafter. His wife says that he did not. His evidence that he did is fully supported by the evidence of his landlady.

12 The evidence on behalf of the husband alleges that when he was in England in 1966 it was necessary to call in the assistance of the Irish Society for the Prevention of Cruelty to Children and that his local Inspector called on the family home on a number of occasions. The wife admits that the Inspector called but denies that it was because of any suggestion that she was not looking after her children properly. Evidence has been given by the husband's sister-in-law that on one occasion during this period the wife without any warning brought over two of her children and literally dumped them on the witness. She kept them for some days and then returned them to their home to the care of their grandfather. In support of his allegation that the wife was careless in money matters, the husband produced a number of bills showing that when the wife left the family home in 1971 she left behind her accounts owing to approximately four different commercial concerns amounting in all to something in the order of £300-00. The wife does not deny the debts but says they arose because of the husband's failure to supply her with adequate monies. In relation to these several issues of fact I accept the case made by the husband and reject that made by the wife. It seems to me that the former is the more probable. The wife is a woman of strong character with a stubborn and determined streak in her which prevents her from seeing any wrong in her own actions. It is this part of her character which led to her leaving the family home. Nevertheless I do not accept the allegations against her of drunkenness nor do I accept that her husband showed violence towards her on any occasion.

13 It is clear on the evidence that the wife left hone without warning. Her explanation is that she couldn't stick it any more. She sought to justify her action by saying that her husband was alright with the children but that marriage was a different story. Even if her leaving was brought about by her husband's conduct, this explanation does not excuse her treatment of her children. On this view of the matter and because I prefer the husband's evidence on this aspect of the case, I an satisfied that her action in leaving the family home amounted to desertion. It was an action which she virtually repeated five years later save that on that occasion she took her two year old son with her. It follows that the plaintiff is not entitled to and maintenance.

14 The...